[2013] HCA 37
Kentwell v The Queen (2014) 252 CLR 601
(2014) 238 A Crim R 134
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Kentwell v The Queen (2014) 252 CLR 601(2014) 238 A Crim R 134
Judgment (6 paragraphs)
[1]
The Applicant's Case on Sentence
The applicant both relied upon documentary evidence, and gave evidence before the sentencing judge.
Exhibit 1 was a letter from the applicant to the sentencing court in which she apologised for her crimes and expressed remorse for having committed them. She also outlined her personal situation, including a childhood marred by sexual abuse (with her statement to police given at the time forming part of the evidence before the court), and a relationship with her former partner in which she was subjected to violence, some of it witnessed by her eldest son. The applicant expressed her fear that she would be parted from her sons, one of whom also suffered from PTSD, as a consequence of being exposed to domestic violence.
The applicant said that, following her arrest she moved to a different area to escape negative associates, and had commenced drug and alcohol counselling. She also referred to a spinal compression she had sustained before she was sentenced, and the surgery from which she was still recovering at that time.
Exhibit 2 was a letter from the applicant's mother, which also referred to some of the circumstances of the applicant's life, and those of the children, as did letters from the applicant's sister and law and family doctor.
Documentation from NSW Health and other agencies and clinicians confirmed the troubled position of the applicant's eldest son, who was then aged about 7, and in need of considerable counselling and support.
A report from Dr Richard Furst was tendered. Dr Furst saw the applicant for the purposes of preparing a report for use on sentence. He set out the history he obtained from the applicant, which included childhood sexual abuse and the use of illicit drugs from about age 15 years to cope with the memories of trauma. Whilst the applicant initially used cannabis, she began using methylamphetamine, or "ice", from about age 24 years. The applicant told Dr Furst that she became involved in the supply of ice to support her children and pay for her drug habit. She asserted that she had been abstinent from drug use since her arrest in May 2015.
The applicant reported feeling anxious, depressed, and worried about a possible separation from her children. She expressed her remorse to Dr Furst for her crimes.
On examination the doctor found the applicant to be logical in her thinking with no indications of psychosis. She was quietly spoken, anxious and tearful, and seemed depressed. Dr Furst considered the applicant to have PTSD, a persistent depressive disorder, and a substance use disorder. He suggested that the latter may have been a maladaptive coping mechanism to cope with anxiety, depression, and PTSD, and thought those conditions contributed to the commission of the offences by forming the background against which they occurred. He also referred to the financial motivation for the supply of drugs.
Dr Furst expressed the view that the conditions from which the applicant suffered would make her more vulnerable to distress and hardship if incarcerated, with separation from her children leading to further distress.
In her evidence before the sentencing judge the applicant gave an account of her life and circumstances broadly consistent with that outlined in her letter, Ex. 1, and as told to Dr Furst. She said that, at a younger age, she had been called to give evidence in two trials relevant to the allegations of childhood sexual abuse she had made, but said that the accused man had been acquitted. She said that she began using cannabis at age 12 (rather younger than she had told Dr Furst) to block out the pain of abuse. That had progressed to the use of methylamphetamine. She gave an account of her relationship with the father of her children, during which she had been subjected to physical abuse. Her eldest son had been deeply damaged by witnessing those incidents. The applicant said that, at time whn she had been using up to one gram of methylamphetamine daily, she began to sell drugs to support her habit and her other expenses.
She gave an account of the spinal injury she sustained in 2015, and of the surgery she had had, and expected to have in the future to deal with the injury. She also expressed her fears for her children, and her eldest son in particular, if she were imprisoned.
The applicant said that she felt like a bad person for having supplied drugs, and had realised that she had to rehabilitate herself from drug use, a process she had commenced with counselling and attendance at narcotics Anonymous.
[2]
The Conclusions of the Sentencing Judge
In his remarks on Sentence ("ROS") the sentencing judge set out the nature of the charges the applicant faced, the details of the case against her, and her personal circumstances.
A reduction of 25% in the sentence that would otherwise have been imposed was allowed, to reflect the utilitarian benefit of the early pleas of guilty. His Honour noted that he was to take into account a further charge of supplying a prohibited drug.
His Honour assessed the "extent of criminality" for the two principal offences as being slightly below the mid-range of objective gravity, and observed that no sentence other than one of imprisonment was appropriate. He rejected the applicant's submission that a sentence of less than 2 years was within range, and alternatives to full-time custody could thus be considered.
His Honour took into account the applicant's prior good character, remorse, and good prospects of rehabilitation. He had regard to the hardship that would be occasioned to her sons were she to be imprisoned, and to the hardship that would flow to the applicant from imprisonment as a consequence of both separation from her children and the difficulties she had with her physical and mental health. He also considered the sexual abuse to which the applicant was subjected as a child, and the consequences for her of that abuse, including descent into drug use.
The sentencing judge did not, however, accept that the applicant should receive a sentence other than one of full-time custody. He observed that the applicant had been financially supported through Centrelink during the period of the offences, and turned to the supply of drugs to provide money to pay for her own habit. He noted that her children had been exposed to her drug use. His Honour concluded that,
These are very serious offences, for which condign punishment must be imposed. They are such serious offences that general deterrence remains a significant issue in this case. People have to be reminded in our community that the dissemination of drugs and the harm that it creates to others is something which our community and our society cannot tolerate.
A finding of special circumstances was made by the sentencing judge, on the basis of the matters raised by the applicant in her case, which he described as "a tragedy" and "compelling in many respects".
As to the offence to be taken into account on the Form 1 document, the sentencing judge said,
The Crown case was that there were two offences and attached to one of those was the form 1 matter of supply prohibited drugs, 27.7 grams of methylamphetamine […] That of itself is a significant matter. Having regard to the serious nature of the other two matters, the approach to be taken here is that it would make little difference to the ultimate outcome of the sentence for the principal offence.
His Honour then interrupted himself to ask,
It appears, and I would ask you to check this, that the form 1 schedule that has been handed up seems to relate to sequence 1 on the Crown bundle. Is that correct?
The Crown responded "Sequence 2", an error not corrected by the solicitor for the applicant. His Honour then went on to impose the sentences set out at [24] above, erroneously taking the Form 1 offence (which was itself sequence 2) into account against sentence imposed for sequence 3.
[3]
The Application for Leave to Appeal Against Sentence
The applicant seeks leave to appeal to rely on two grounds of appeal:
1. "His Honour erred in his approach to the matter on the Form 1."
2. "His Honour failed to apply the principles relevant to the assessment of the applicant's moral culpability."
[4]
Ground 1: His Honour erred in his approach to the matter on the Form 1
The error identified by the applicant is that referred to above, that is, his Honour imposed sentence for sequence 3, taking into account the offence on the Form 1 document, in circumstances where the applicant had asked, and the Crown had consented, to the offence being taken into account against sequence 1.
Since there is little to distinguish between the criminality of the two s 25A(1) DMTA offences, it is reasonable to conclude that sequence 3 attracted a higher penalty than the penalty imposed for sequence 1 because of the additional charge taken into account against it when the sentence was determined. The sentence imposed for sequence 3 was thus imposed on an erroneous basis; the inevitable conclusion is that, had his Honour been correctly informed as to the count against which the Form offence was to be taken into account, the sentence imposed for sequence 3 would have been imposed for sequence 1, and vice versa.
The error in his Honour's approach has been, properly, conceded by the Crown.
Section 33 of the Crimes (Sentencing Procedure) Act provides the power for a sentencing court to take other offences into account when determining sentence for the principal offence. It provides,
33 Outstanding charges may be taken into account
(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
(2) The court may take a further offence into account in dealing with the offender for the principal offence:
(a) if the offender:
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
(b) if, in all of the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.
(4) A court may not take a further offence into account:
(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or
(b) if the offence is an indictable offence that is punishable with imprisonment for life.
(5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.
(6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.
The power provided by s 33 is not open; it must be exercised in accordance with the section. Necessarily, for a sentencing court to be able to take additional charges into account against a designated offence the matters referred to in s 33 must be fulfilled. Of particular relevance in the current matter is s 33(2), which requires the offender to admit guilt for the further offence, and to indicate a wish to have the court take it into account against "the principal offence".
The further offence must be taken into account against the principal offence. Unlike s 32, which provides for the prosecutor to file a list of additional charges, s 33 does not have a provision comparable to s 32(6) which provides that failure to comply with the section does not render a sentence imposed invalidate.
In taking the s 25(1) offence into account against a charge other than the principal offence, his Honour acted without power. The error must be corrected, and the applicant resentenced for both offences, taking the s 25(1) offence into account against sequence 1.
Having concluded that there was error in the manner in which the offence on the Form 1 document was dealt with, it is necessary for this Court to re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; (2014) 238 A Crim R 134; [2014] HCA 37. Given that, ground 2 falls away and need not be further considered.
[5]
The Sentences that Should be Imposed
Before this Court, the applicant argued that she should receive a sentence such that time served, a period of a little over 10 months imprisonment, should constitute any non-parole period. She relied upon those matters advanced before the District Court, together with some further evidence received by the Court in the event that it proceeded to re-sentence.
Since going into custody the applicant has completed a number of courses directed to drug rehabilitation, personal development, and work skills. It is submitted that her participation in these courses and her experience of a period of incarceration is such that the need for specific deterrence is reduced. The need for general deterrence is also submitted to be reduced because of the applicant's dysfunctional and traumatic background, the drug addiction that arose from her experience of abuse, and her mental health issues.
Even accepting the applicant's argument as to a reduction in moral culpability (which could only be slight in my view in that the applicant was a supplier for profit) I am unable to conclude that a less severe sentence overall than that imposed at first instance is warranted.
Offences contrary to s 25A of the DMTA carry a maximum penalty of 20 years imprisonment, together with a substantial fine. That is the legislative guidepost against which sentence must be considered. The facts of the applicant's crimes show them to have been relatively sophisticated offences: the applicant had a regular customer base in the Norther Beaches area; she had a covert code that was used in an attempt to avoid detection by law enforcement officials; and she was able to obtain reasonably significant quantities of methylamphetamine at short notice and sell them for financial profit. As the sentencing judge concluded, the offences fell only a little below the mid-range.
Whilst the applicant's subjective case was a strong one, and there is a sound basis upon which to mitigate the sentence, the overall term imposed at first instance - one of 3 years and 3 months imprisonment, with a non-parole period of 18 months, expiring on 17 July 2018 - was a very lenient one. There was only three months of accumulation between the sentences imposed, and the NPP comprised a mere 46.1% of the total effective sentence. Both the head sentences and the NPP were, indeed, markedly lenient.
The error in sentence must be corrected, but I would not impose any lesser sentence than that imposed in the District Court; anything less would in my opinion be manifestly inadequate to reflect the serious criminality of these offences.
Although the sentence to be imposed with respect to sequence 1 will be greater than that imposed at first instance, the applicant conceded at the hearing of this matter that a warning in accordance with Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 was not required, as there would be no increase in the total effective sentence.
The orders I propose are:
1. Leave to appeal granted;
2. Appeal allowed;
3. Sentences imposed in the District Court with respect to two counts of ongoing supply of a prohibited drug, taking into account one count of supply prohibited drug, are quashed;
4. In lieu, the applicant is sentenced as follows:
1. For Sequence 1, and taking into account the offence of supply prohibited drug: 3 years imprisonment to date from 18 April 2017 and expiring on 17 April 2020, with a non-parole period of 1 year and 3 months, expiring on 17 July 2018;
2. For Sequence 3: 12 months imprisonment to date from 18 January 2017 and expiring on 17 January 2018.
[6]
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Decision last updated: 15 December 2017
SIMPSON JA and R A HULME J: We have read in draft the judgment of Wilson J. We agree, for the reasons given by her Honour, that error of the kind pleaded in Ground 1 is established, although, in the circumstances, it is error of the most technical kind. That is because the two offences of ongoing supply were virtually indistinguishable in terms of their objective seriousness, and, absent the additional offence taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") could have been seen to warrant similar sentences. Nevertheless, that error has the consequence, as Wilson J has said, that this Court must re-sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. In doing so, the Court may take into account such additional material as is available concerning the applicant's circumstances since sentencing.
The applicant pleaded guilty to two charges of ongoing supply of a prohibited drug (methylamphetamine) for financial or material reward. The offences involve nine separate instances of supply (on some occasions constituted by an agreement to supply) over a period of a little under two months. The reason that there were two separate charges lies in the statutory provision by which the offence is created. Section 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) creates an offence of ongoing supply where, on three or more separate occasions during any 30 day period, a person supplies a prohibited drug for financial or material reward. It is the 30 day limitation that explains why the applicant was charged with two separate offences.
Wilson J has set out in some detail the circumstances of the applicant's offending. It is not necessary to repeat that. Clearly, the offending was serious and had to be treated as such.
The applicant, however, presented a powerful case in mitigation. Wilson J has summarised the documentary material tendered in the applicant's case as well as aspects of her oral evidence. Particularly significant matters include:
The applicant's stepfather came into the family home when she was aged 2. Thereafter the applicant was a witness to physical domestic violence. She became the victim of sexual abuse commencing when she was aged 5 and continuing until she was aged 14. She gave evidence against her stepfather in two trials in around 2000 but he was ultimately acquitted.
The applicant suffered serious emotional consequences from the sexual abuse and the subsequent legal proceedings, including severe anxiety, nausea, shaking and agoraphobia.
She began using cannabis in her early teenage years in order to cope with her emotional distress and to block out traumatic memories. She began using "ice" in her early 20s but her use escalated in the period leading up to the offending as a means of coping with her anxiety and increasing her self-confidence.
The applicant's two children were born in 2009 and 2011 and were aged 7 and 5 at the time of sentencing. The applicant was in a relationship with their father for about five years but that relationship was marred by his physical violence towards her and generally. Her children witnessed such violence, including an incident in which he stabbed a person. The applicant terminated the relationship in early 2012 because of the violence. However, she and the children continued to be exposed to harassment, abuse and stalking despite persistent attempts by the applicant to extricate herself and the children from contact from this man.
Following her arrest and release on bail the applicant undertook and completed a detoxification program. She thereafter engaged in counselling and therapy and attended Narcotics Anonymous meetings. She had remained abstinent from illicit drugs until the time of sentencing.
The applicant sustained a serious spinal injury in about September 2015 and underwent surgery. It affected her ability to walk. At the time of sentencing she required further surgery to remove a plate that had been inserted in her neck but which was being rejected by her body.
Dr Furst made the following diagnoses in relation to the applicant:
1. Post-traumatic Stress Disorder.
2. Persistent Depressive Disorder.
3. Substance Use Disorder.
As to the applicant's prognosis, Dr Furst wrote:
"Ms Linden has experienced significant trauma and loss, with residual symptoms of anxiety, depression and PTSD evident at the time of recent assessment. Those conditions tend to be chronic and enduring, meaning she will probably require ongoing psychiatric and psychological counselling and treatment over the longer term."
Noting the applicant's abstinence from drugs and her motivation to engage in further treatment, Dr Furst considered that she had good prospects of rehabilitation. Having regard to a broad range of factors, including her wish to continue supporting her children, he assessed her as presenting a low risk of re-offending.
Dr Furst was also of the opinion that a custodial sentence would be more onerous for the applicant than for the average inmate. He explained:
"Ms Linden has a history of trauma, PTSD, depression and anxiety that would make her vulnerable to experiencing further distress and hardship if incarcerated, in excess of what would be expected for the average inmate. Separation from her children would likely exacerbate her current high levels of anxiety and distress, especially as her [older son] is dependent on her/has special needs.
Her PTSD and depression are likely to make her experience in a gaol setting a direct threat to her emotional and physical wellbeing, especially as she is a victim of previous trauma and has significant current surgical problems/physical disability as a consequence of her spinal injury.
Those factors, and her pre-existing emotional vulnerabilities, would make a custodial sentence more onerous on Ms Linden than the theoretical 'average' inmate."
There is reason to regard the applicant's moral culpability for her offending as being less than it otherwise might have been for her offences. On this subject, Dr Furst wrote:
"The available history and [her] current presentation make it more likely than not that she was anxious, depressed and was suffering from ongoing symptoms of [her] PTSD at the time of the [offences] … likely having a bearing on the poor judgment [she] displayed and a lack of consequential thinking.
Her depressed mood, anxiety and PTSD probably also contributed to her supply offences by forming the background for her addiction to methylamphetamine and as an ongoing form of avoidance from her emotional problems / unresolved trauma at the time."
That said, the reduction of the applicant's moral culpability for the reasons Dr Furst has provided must be relatively minimal. There can be no denying that the applicant was involved in the organised distribution of illicit drugs that was carried out with some skill and care (for example, the use of code in her conversations with customers). It was considered activity, not the product of any impulsivity.
Aside from some issues relating to the applicant's family circumstances we will mention shortly, the subjective mitigating features may be summarised:
1. Early pleas of guilty.
2. Remorse.
3. No prior criminal offending.
4. Good prospects of rehabilitation.
5. A low likelihood of re-offending.
6. Custodial conditions being more onerous than usual.
7. The applicant's dysfunctional and traumatic background (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37).
8. The applicant's offending being significantly motivated by her drug addiction in circumstances where her resort to drugs was related to her childhood trauma.
It seems to us that a matter of particular significance is the evidence concerning the applicant's family circumstances. Prior to going into custody, she was the sole carer to her two sons, now aged 6 and 9. The physical abuse perpetrated by their father has had a harmful impact, particularly on the older child who had a significant adverse reaction to observing domestic violence. He exhibits behavioural difficulties and has educational challenges.
Both children have been referred to a specialist children's medical support service which, in 2014, assessed the older child as meeting the criteria for post-traumatic stress disorder for a child of his age. The service considered that separation from the applicant would be highly damaging to both children. The younger child is also exhibiting behavioural and learning difficulties. Both children plainly have special needs.
A question naturally arose as to the care of the children should the applicant be incarcerated. The applicant's mother provided a letter for the Court in which she spoke of the applicant's history and then said:
"I am particularly concerned that [the applicant's] incarceration would impact and damage both my grandsons in a way that they do not deserve. In particular, [the older boy] has already been showing signs of this with the sentencing date coming closer, having been suspended several times. In addition, due to my own health problems, I fear the children would have to be put into care. I would not be able to cope. I have pulmonary lung disease and had a heart attack 7 years ago. I am unable to walk uphill or up stairs. I am frequently short of breath and unable to breathe. I get extremely tired very easily. I have numbness in my hands and severe cramps in my legs that prevent me walking. I cannot see how I would be able to care for the two boys alone. Their paternal grandparents live in New Zealand and would not care for them. They have only met the boys once. If however, [the applicant] is incarcerated, her family will undoubtedly be there for her upon release."
The applicant confirmed in her evidence that her mother would be prepared to look after the children, but that her health would not permit her to do so. She did not know who would look after the children in her absence. She feared that the older boy "won't cope". Counsel for the applicant informed the Court at the hearing on 28 November 2017 that, as it has transpired, the applicant's mother has continued with care of the children. However, having regard to the evidence referred to above, that is hardly ideal.
It is well established that hardship to family members may be taken into account for sentencing purposes only where the circumstances are exceptional: R v Wirth (1976) 14 SASR 291 cited in R v Edwards (1996) 90 A Crim R 510 at 516-7 (Gleeson CJ). Inherent in that formulation is recognition that there are some cases that do qualify as exceptional. Whether the circumstances of the applicant's children alone are capable of being regarded as exceptional is not a matter we need to decide. We are amply satisfied that the applicant's subjective case overall, considered in conjunction with the issue relating to the children, renders this case one where substantial leniency should be extended, notwithstanding the seriousness of the offences of which we remain mindful.
Allowing for a 25 per cent reduction on account of the applicant's early pleas of guilty, we would assess the sentence for the offence identified as "sequence 1" as one of 1 year 10 months and the sentence of the offence identified as "sequence 3" as one of 1 year 3 months. The former takes into account the offence listed on the Form 1 document.
In considering the principle of totality, we regard it as necessary that there be some accumulation as between the two sentences. There is additional criminality involved in the commission of the second ongoing supply offence but, given it was a continuation of an established activity, the degree of accumulation should be moderate.
There are special circumstances pursuant to s 44(2B) of the Sentencing Procedure Act that justify the non-parole period being less than the usual proportion of the overall term. A longer period of supervision will help the applicant in re-establishing her life as a parent, a task we perceive will be more challenging having regard to the period of absence from her children and their own personal difficulties. We are also mindful of the "treatment plan" set out in Dr Furst's report which includes suggestions such as long-term psychotherapy to assist the applicant with the issues arising from the abuse she sustained in childhood and in the relationship with her former partner. These are such compelling circumstances that we are of the view that the applicant should be released on parole forthwith.
We propose to impose an aggregate sentence pursuant to s 53A of the Sentencing Procedure Act.
The orders we propose are:
1. Leave to appeal granted and appeal allowed.
2. Sentence imposed in the District Court on 18 January 2017 quashed.
3. In lieu, the applicant is sentenced to imprisonment for 2 years and 2 months with a non-parole period of 10 months 28 days commencing 18 January 2017 and expiring on 15 December 2017. The applicant is to be released upon parole forthwith. It is a condition of parole that the applicant be supervised for the term of the parole period. The standard conditions set out in cl 214 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) will also apply.
WILSON J: This is an application for leave to appeal brought by Jamie Linden pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against sentence imposed upon her on 18 January 2017 in the District Court in Sydney by his Honour Acting Judge Delaney.
The applicant had pleaded guilty in the Local Court to two counts of ongoing supply of a prohibited drug (methylamphetamine), between March 2015 and May 2015, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) ("DMTA"), and been committed for sentence. She additionally asked the sentencing court take a further offence of supplying a prohibited drug contrary to s 25(1) of the DMTA into account on sentence against sequence 1, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant was sentenced to a total term of imprisonment of 3 years and 3 months, with a non-parole period ("NPP") of 18 months to commence on 18 January 2017 and expiring on 17 April 2020. The NPP is due to expire on 17 July 2018.
The sentence reflected a 25% reduction in the sentence that would otherwise have been imposed to recognise the applicant's early guilty pleas. A finding of special circumstances was also made and resulted in a NPP of 46.1% of the total effective sentence. The individual sentences imposed are outlined below:
Offence Maximum Penalty Sentence
Sequence 1:
Ongoing supply of a prohibited drug (methylamphetamine) between 17.3.2015 - 15.4.2015 20 years imprisonment and/or fine of $385,000 Fixed term of 12 months imprisonment - commencing 18.1.2017 and expiring 17.1.2018
(25A(1) DMTA)
Sequence 3:
Ongoing supply of a prohibited drug (methylamphetamine) between 16.4.2015 - 8.5.2015 20 years imprisonment and/or fine of $385,000 3 years imprisonment with
(25A(1) DMTA) NPP of 15 months - commencing 18.4.2017 and expiring 17.4.2020; the NPP expiring 17.7.2018
(Form 1 offence taken into account)